HIGH COURT DISPUTED IN CIA SECRECY CASE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000403710025-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 22, 2016
• Document Release Date: February 27, 2012
• Sequence Number: 25
• Publication Date: February 24, 1986
• Content Type: OPEN SOURCE

Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3
WASHINGTON POST
Vii, .. .. .. `t,
24 February 1986
High Court Disputed
In CIA Secrecy- Case
.'eholar Traces l:arir Curb on Igrnrv / n eer
By George Lardner Jr.
Washugttmt Post Staff Writer
Last year the Supreme C6urt
gave the CIA absolute authority to
keep all of its sources of information
secret, even if the sources are not
confidential and even if the infor-
-mation is not classified. Writing for
a 7-to-2 majority in CIA v. Sims et
at., Chief Justice Warren E. Burger
declared that Congress had been
quite "plain" about the matter when
it created the CIA in 1947 and that
the "legislative history" clearly
showed that the CIA director had
been given "very broad authority to
protect all sources of information
from disclosure."
Now it appears that Burger's
opinion was based on a shaky line of
reasoning indeed. There is no "leg-
islative history" behind the provi-
sion the high court so roundly em-
braced-in fact, no indication that
Congress ever debated or discussed
the matter. And what history there
is outside congressional records in-
dicates that the provision in ques-
tion was an anti-CIA restriction de-
vised 41 years ago to keep the new
kid on the intelligence community
block from popping off about a very
narrow set of secrets.
The scholarly detective work
supporting those findings was done
by Thomas F. Troy, a highly re-
spected, retired CIA historian who
has been, for the past four years,
editor of a bimonthly newsletter
and book review, the "Foreign In-
telligence Literary Scene."
Troy, it should be emphasized, is
no bleeding-heart critic of the Cen-
tral Intelligence Agency. He was as
delighted with the high court's de
. cision as the CIA was. It's just that
he can't. abide bad history, as he
makes clear in the latest edition of
his newsletter.
The controversy goes back to
congressional enactment of the Na-
tional Security Act of 1947, which
established the CIA. The new agen-
cy was assigned "to correlate and
evaluate intelligence relating to the
national security, and provide for
the appropriate dissemination of
such intelligence within the govern-
ment"-with three restrictions.
The first was the so-called anti-
Gestapo clause, providing that the
agency "shall have no police ... or
internal security functions." The
second reassured the other intel-
ligence agencies of the government,
the Army's and Navy's especially,
that they could continue their work.
The last proviso stated that "the
director of central intelligence shall
be responsible for protecting intel-
ligence sources and methods from
unauthorized disclosure."
Now jump ahead to 1977. The
Freedom of Information Act had re-
cently been strengthened; indigna-
tion was still high in some quarters
about congressionally exposed ex-
cesses by the intelligence commu-
nity.
Two men, Washington attorney
John C. Sims and Sidney Wolfe, di-
rector of the Public Citizen Health
Research Group, sued under FOIA
for the names of individuals and in-
stitutions that had done research
for the CIA's MK/ULTRA Project.
Financed from 1953 to 1966 in re-
sponse to Soviet and Chinese brain-
washing tactics, it eventally extend-
ed to at least 80 universities, re-
search foundations and similar in-
stitutions. It also became notorious
for having produced, as Chief Jus-
tice Burger noted, some "untoward
results," including the deaths of at
least two unwitting individuals giv-
en dangerous drugs such as LSD.
The CIA refused to supply the re-
quested information, saying it was
required under the 1947 law to
"protect intelligence sources and
methods." The agency's lawyers
took the broadest possible posi-
tion-that an "intelligence source"
was any source of information at all,
including even an article from, say,
The Washington Post or .the Lon-
don Sunday Times. -
The U.S. Court of Appeals here
disagreed and formulated its own
definition, one that would have re-
quired much of the information in
the case to be released. The names
could still have been kept secret if
the CIA had chosen to classify them
on grounds that their disclosure
would damage the national security.
But the CIA refused, looking for a
showdown on the "sources and
methods" clause.
The case reached the Supreme
Court, which handed the agency a
complete victory. It rejected the ap-
pellate court's definition and came
up with its own, even going so far,
as Trov points out, to label it "the
ing the CIA such "sweeping power"
and talking at another point of the
"plain statutory language."
Despite all that rhetoric, Troy
notes, neither Burger "nor anyone
else cited one scintilla of evidence
that any congressman, any commit-
tee or any caucus-or anybody any-
where-ever thought or said any-
thing about the words ['sources and
methods') ... Congress never gave
those words the time of day."
In fact, the "sources and meth-
ods" proviso was concocted in early
1945 following joint military discus-
sions in which Army and Navy of-
ficials were opposed to any new in-
telligence agency. Troy says that
when they recognized the inevita-
bility of having to share information
with "the new, untried, distrusted
CIA," they decided to cogcentrate
on keeping their special secrets
safe.
According to Troy's research,
Rear Adm. Joseph R. Redman,
then-director of naval communica-
tions and a man said to be "jealously
intent" upon maintaining his turf,
devised the formula in a Jan. 8,
1945, memo to a planning group
called the Joint Strategic Survey
Committee. Redman's office was in-
volved in the wartime business of
intercepting, decoding and dissem-
inating enemy radio communica-
tions (comint), and, Troy says, that
is what the admiral wanted to pro-
tect. He took his cue from a June
1944 military study that, in sug-
gesting legislation to counter dam-
aging "comint" leaks, recommended
that specific references to "radio in-
telligence" be avoided and broad
"cover" language used in its place.
So was born the phrase "sources
and methods."
To comint experts, Troy. notes,
tpe word sources" referred to par-
ticular kinds of intercepts and thus,
the Japanese army, navy, and air
force were so many "sources" of in-
telligence. Similarly, "methods" re-
ferred to code books, ciphers and
the like.
I The Joint Chiefs of Staff incor-
Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3
 Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3 Ot
WARREN E. BURGER
... Congress was "plain" on subject
porated the idea in an overall plan
that they approved Sept. 18, 1945.
It provided for the sharing of mil-
itary secrets with the new agency,
and in the next breath, made the
CIA responsible "for fully protect-
ing intelligence sources and meth-
ods which, due to their nature,.have
a direct and highly important bear-
ing on military operations." Simply
put, Troy says, "the phrase was im-
posed upon- the new CIA by a U.S.
military fearful that the new agency
might compromise comint."
The language was later abbrevi-
ated, evidently by military drafts-
men, and finally enacted by Con-
gress in 1947, without discussion,
without debate.
"Knowing no history and reading
only words, the 'Supreme Court
came up with a theoretically plau-
sible but historically untenable view
of 'sources and methods,' " Troy
concludes.
"What the court would have us
believe is that an alert, all-seeing
Congress, worried about our intel-
ligence secrets, gave CIA, entrusted
CIA, helped CIA and vested in CIA
what CIA needed to carry out its
mission-namely, virtually unlim-
ited power to protect all sources, no
matter how commonplace and pub-
lic-even newspapers, public li-
braries, road maps and telephone
books .... What the court failed to
learn is that the phrase came from
... a body of people who simply did
not want a CIA...."
The court's ruling, of course, will
remain in force, bad history not-
withstanding. The law is what the
Supreme Court says it is. But per-
haps a new corollary can be added:
on issues involving intelligence, the
law may be what the CIA tells the
Supreme Court it is.
Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3